United States foreign policy as an obstacle to the development of international law

Published in the Book “Unisa” Numbers I and II, Volume 22 on 2006, Petroria, South Africa.

By Durval de Noronha Goyos Jr. Honorary Associate, Unisa Centre for Latin American Studies (Translated from the Spanish by Marcia Lockett)

This article analyses the ways in which the unilateral foreign policy of the United States hinders the development of international law, taking its violation of multilateral agreements like the United Nations Charter as a starting point and moving on to its resistance to signing or ratifying treaties in the most diverse areas, among which, environmental, human rights, the International Court of Justice, military, labour and the Convention on International Treaties.

Este articulo, analiza como la politica exterior unilateral de Estados Unidos entorpece el desarrollo de una legislacion internacional con sus continuas violaciones de acuerdos multilaterales como las convenciones de la ONU y, con su reticencia a ratificar acuerdos en diferentes áreas: medioambiental, Derechos Humanos, Tribunal Internacional de Justicia, asuntos militares, asuntos laborales, la Convencion sobre Tratados Internacionales, etc.

0 artigo analisa a maneira pela qual a política externa unilateral dos Estados Unidos constitui um impedimento para o desenvolvimento do direito internacional. 0 ponto de partida e a violação da Carta Constitutiva das Nações Unidas, passando à resistência em assinar ou ratificar tratados nas mais variadas áreas: meio-ambiente, direitos humanos, o Tribunal Internacional de Justiça, área militar, assuntos laborais, a Convenção sobre Tratados Internacionais, etc.

International law does not enjoy the same legitimacy or normative clarity as the national statutes of any particular country, since national laws are made by a legislative body set up under a constitution promulgated by a constituent power. In contrast, the norms of international law are created by sovereign states to regulate their relations, the organisations they establish and the activities, behaviour and/or transactions of their citizens in certain national, transnational or multinational spheres in such a way that they may enjoy protection or legal safeguards. Even so, just as the balance of power between nations is uneven, so international law, a product of agreements, tends to reflect this imbalance in its norms. Similarly, international law differs from national laws in its manifestations. This is because it has not yet been able to establish any degree of supremacy over brute force.

Nevertheless, although international law and the blatant exercise of power are not the same thing but rather the exact opposite of each other, they frequently appear to be. Diplomacy has long been used by the more powerful States to accomplish this. The Spanish jurist Pastor Ridruejos warns `that classic international law was basically oligarchic in its origins, that is, it was initiated by a small group of the great powers in order to serve and legitimate their own national interests’. Thus, the failure to implement a transnational legal order caused many jurists to question the very existence of international law, not only because of the illegitimate and defective process that led to its creation but also because of the problems in carrying out its rulings.

Meanwhile, the second half of the twentieth century saw a notable development in international norms, through many agreements between equals and other agreements that, although disparate, were less arbitrary than the practices they replaced. Such norms, although still far from perfect, undeniably generated significant rules on relations between these nations and others subject to international law, promoting a kind of juridical modus vivendi in international relations, as well as values precious to all humans, such as, for example, the question of human rights. Progress was also evident in international norms in other spheres such as international trade, the environment, disarmament, labour, etc. The above normative development of jus inter gentes aroused the hope in many that traditional arbitrary decision-making and the exercise of self-interest in international relations would eventually be replaced by a state of law similar to that achieved in the sphere of national law in the world at large.

The collapse of the Union of Soviet Socialist Republics (USSR) in 1991 was a milestone in the history of international relations in many and diverse ways, but particularly in the delineation of the foreign policy of the United States of America (US). Released from the struggle for hegemony, America abandoned even those scant attempts to develop international law it had made in practice until then within the community of nations. Its objective had been to construct a transnational judicial order that would legitimate its empire, a jus imperium. This change in direction was also apparent in the blunt, brutal and pragmatic foreign policy of replacing international law with the diktat of the major and supreme power, as expressed in conformity with the perceived national interests of that country.

Thus, in September 2002 the Bush administration, in its National Security Strategy document, repudiated no less than the Charter of the United Nations Organization (UN) itself with respect to the use of force. By authorising the preventive and unilateral use of force it acted contrary to the provisions of article 2 (4) of the United Nations Charter, which specifically prohibits the use of armed force against another country unless it is in self-defence or under the aegis of that international organisation, after appropriate deliberation by its Security Council. But immediately, in October of the same year, the United States Congress authorised the Executive of that country to undertake the war against Iraq, even without the approval of the United Nations Security Council. American diplomacy had already threatened the United Nations in September 2002 that if the demand for war was rejected it would take the initiative unilaterally. Failing to obtain the necessary UN approval, the United States and the United Kingdom (UK), its henchman, embarked on an illegal military adventure, invading Iraq. Nevertheless, none of the political arguments utilised to try to explain the crime are admissible as justification before international law.

However, given that the United States violated the United Nations Charter, the highest-ranking international treaty, what can be said about those of lower rank? In fact, this is not an isolated case. On the contrary, as we can see, there is a confirmed and habitual tendency on the part of that country to abandon the international judicial order. This is evident from its systematic refusal to ratify the Vienna Convention on the Laws of Treaties of 1969 that, inter alia, confirms the superior status of international treaties over national law, in the same way that it blocks the use of arguments based on national law to exonerate a State from meeting an international obligation. Such paradigms are categorically rejected by the constitutional judicial structures of the United States.

Similarly, the Kyoto Protocol of 2001, a treaty that aimed in the first instance to limit environmental damage and then to move forward to reverse it, was repudiated by the United States, the country that is the greatest polluter. On the other hand, in the military sphere, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and Their Destruction (Ottawa Treaty, 1997) which aimed to reduce the damage to the civilian population caused by the use of explosive mines was not signed by the United States, because of its alleged incompatibility with its military interests. Staying in the military sphere, during the Bush administration America abrogated the Anti-Ballistic Missiles (ABM) Treaty of 1972, which limited militaristic nuclear expansionism during the Cold War. In the same sphere, the United States frustrated the United Nations Conference on the Illicit Traffic in Small Arms and Light Weapons in All Its Aspects, preventing an efficient international regulation of the source of urban violence in many countries of the world. Also in the military sphere, the United States opposed the Banning of Nuclear Warheads Treaty of 1996 and frustrated a New Protocol additional to the Biological and Toxin Weapons Convention (BTWC) of 2001, because it refused to allow inspections. As if such measures were not enough, the US also repudiated the Chemical Weapons Convention (CWC) of 1993.

In the sphere of human rights, the United States rejected the New Protocol on the 1987 Convention on Torture, just as it rejected the Convention on the Elimination of All Forms of Discrimination against Women and including the International Convention on the Rights of the Child. Not even the creation of the International Court of Justice by treaty in 1998 was supported by the United States, because of fears of criminal prosecution of political and military officials of its administration. In this case, the US broke new ground in international law in an effort to have its signature removed from the treaty. Naturally, the United States never ratified the treaty. Moreover, the US sought to sign bilateral agreements of criminal impunity for its officials, like those it signed with Israel, Romania, Tajikistan and East Timor. Even the Geneva Convention of 1949 relative to the treatment of prisoners of war, one of the principal international bulwarks for the regulation of human rights, was almost completely discarded by the United States during its recent conflicts, notably in Afghanistan and Iraq, but even before that in Panama. The problem of the treatment of prisoners of war in Afghanistan under the regulation of the Geneva Convention, which in its article 4 (1) considers even members of militias subjects for its supervision, involves human rights violations of the vast majority of its articles, including, but not limited to, those of number 13, which refers to humane treatment, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 and 118, which deal with immediate repatriation after the cessation of hostilities.

Also in the field of human rights, the United States withdrew from the International Conference on Racism, held in Durban, South Africa, in 2002. The international community almost unanimously supported this initiative. Similarly, as recently as 2003 in the United Nations General Assembly, the US voted against the two resolutions proposed to that international organisation by the Human Rights Commission. The first resolution declaring the highest level of physical and mental health a human right was approved by 166 votes, with the only vote against it from the United States. The second resolution dealt with the right of access to medication in the context of pandemics like AIDS-related illnesses, malaria and tuberculosis. It was approved by 167 votes, again with the only vote against coming from the United States.

In the field of labour, the United States ratified only 14 of the 185 Conventions of the International Labour Organization (ILO). By comparison, Brazil ratified 90 Conventions. Among the Conventions not ratified by the US, for example, are numbers 100 and 111, that deal with discrimination in work. ILO Convention 138, dealing with the prohibition of child labour, was also not ratified by the United States. In addition, neither of the Conventions on forced labour, ILO 29 and ILO 105, were ratified, which permitted the practice of forced labour in American prisons for token wages. At least three federal states of the United States export goods manufactured in the prisons of that country. Moreover, the United States failed to ratify ILO Convention 98 on the right to organise trade unions and collective bargaining, and ILO Convention 111 that asserts the right to equal pay for equal work. This failure to adhere to a large number of ILO norms places severe limitations on the right to organised labour movements and the right to strike in the United States. This problematic history, however, does not prevent an official rhetoric from the diplomatic ranks of that country that is as sanctimonious as it is specious, criticising the labour norms of other countries.

The obstacles placed by the United States in the way of the formulation and development of international law are also frequently accompanied by heavy manipulation and destabilisation of the international bodies charged with its application. In the United Nations itself, we have witnessed how a Security Council authorisation could result, in the case of Afghanistan, in serious violations of human rights and lack of respect for international law. In the World Trade Organization (WTO), a gigantic manipulation of the system can be alleged that has disadvantaged the developing countries in favour of a central nucleus of the developed countries, notably the United States. The International Monetary Fund (IMF) and the World Bank function as if they were departments in the Ministry of Trade of the United States, promoting the strategic objectives of the foreign policy of that country, by bestowing favours and sanctions as appropriate, as occurred in their shameful treatment of Argentina in its recent past. In the equally scandalous case concerning the Organization for the Prohibition of Chemical Weapons, its Secretary General, the competent Brazilian diplomat Ambassador Jose Mauricio Bustani, was removed at the instigation of the United States. That diplomat’s execution of his duties and the statutory objectives of that organisation were regarded as hostile to the national interests of America.

It should not be imagined, that the formulation of a foreign policy that shirks the task of developing international law along with the community of nations may be just the idiosyncratic caprice of an obtuse, laughable and bloody tyrant. This attitude has quite deep roots in the political and economic world view in America and it is, in general, not dependent on the figure of the president. However, even within the logic of brute force there is a need to consolidate a jus imperitan and the United States is pursuing this goal through a network of disparate treaties, both bilateral-and regional. Its activities include trade agreements, but not exclusively, and will tend to accelerate in the near future.

*Based on a paper presented on the occasion of the opening of the 5th Model of the United Nations Organization in São Paulo, Brazil, 12 December 2003.
1- Durval de Noronha Goyos Jr. 2003. Arbitration in the World Trade Organization, Miami: Legal Observer, p.7
2- J. P. Ridruejo. 1996. Curso de derecho internacional público y organizaciones internacionales, 6th edition, Madrid: Tecnos.
3- Durval de Noronha Goyos Jr. 2000, Essays on International Law. São Paulo: Observador Legal Editora, p. 102.
4- See Treaty of Alma Ata of 1991.
5- The National Security Strategy of the United States of America.
6- See Michel Glennon. 2003 ‘Why the Security Council Failed’, in Foreign Affairs, New York, USA, May/June, p. 16ff.
7- See, in this regard, Robert Alexander. 2003. ‘Scrutiny by the courts could put a stop to this military adventurism’, The Times’ Legal Supplement, London, 14 October.
8- See Jean Ziegler, Os novos senhores do mundo e seus opositores. Lisbon: Terramar pp. 39, 40
9- See Rodaldo Sardenberg. 6 January 2004. ‘Iniciativas do Brasil na ONU no campo dos direitos humanos’, in O Estado de São Paulo, p..2
10- See ‘Summary of the IFCTU Report on “Workers” Rights in the United States’, International Conference of Free Unions, July 14, 1999.
11- See Durval de Noronha Goyos Jr. Arbitration in the World Trade Organization, Op. cit., p. 39, ff.
12- See Phyllis Venis. 2003. Before & after: US foreign policy and the war on terrorism. Gloucestershire, United Kingdom: Arris Books, pp. 192 and 193.